HARBISON v. BELL, WARDEN

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
180 OCTOBER TERM, 2008
Syllabus
HARBISON v. BELL, WARDEN
certiorari to the united states court of appeals for
the sixth circuit
No. 07–8521. Argued January 12, 2009—Decided April 1, 2009
After the Tennessee state courts rejected petitioner Harbison’s conviction
and death sentence challenges, the Federal District Court appointed a
federal public defender to represent him in filing a habeas petition under
28 U. S. C. § 2254. That petition was denied. Harbison then sought ap
pointment of counsel for state clemency proceedings. Because Tennes
see law no longer authorizes the appointment of state public defenders
as clemency counsel, his federal counsel moved to expand the scope of
her representation to include the state proceedings. In denying the
motion, the District Court relied on Circuit precedent construing 18
U. S. C. § 3599, which provides for the appointment of federal counsel.
The Sixth Circuit affirmed.
Held:
1. A certificate of appealability pursuant to 28 U. S. C. § 2253(c)(1)(A)
is not required to appeal an order denying a request for federally ap
pointed counsel under § 3599 because § 2253(c)(1)(A) governs only final
orders that dispose of a habeas corpus proceeding’s merits. P. 183.
2. Section 3599 authorizes federally appointed counsel to represent
their clients in state clemency proceedings and entitles them to compen
sation for that representation. Pp. 183–194.
(a) Section 3599(a)(2), which refers to both § 2254 and § 2255 pro
ceedings, triggers the appointment of counsel for both state and federal
postconviction litigants, and § 3599(e) governs the scope of appointed
counsel’s duties. Thus, federally funded counsel appointed to represent
a state prisoner in § 2254 proceedings “shall also represent the defend
ant in such . . . proceedings for executive or other clemency as may be
available to the defendant.” § 3599(e). Because state clemency pro
ceedings are “available” to state petitioners who obtain subsection (a)(2)
representation, the statute’s plain language indicates that appointed
counsel’s authorized representation includes such proceedings. More
over, subsection (e)’s reference to “proceedings for . . . other clemency”
refers to state proceedings, as federal clemency is exclusively executive,
while States administer clemency in various ways. The Government is
correct that appointed counsel is not expected to provide each service
enumerated in subsection (e) for every client. Rather, counsel’s repre
sentation includes only those judicial proceedings transpiring “subse

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
181 Cite as: 556 U. S. 180 (2009)
Syllabus
quent” to her appointment, which under subsection (a)(2) begins with
the § 2254 or § 2255 “post-conviction process.” Pp. 183–188.
(b) The Government’s attempts to overcome § 3599’s plain language
are not persuasive. First, this Court’s reading of the statute does not
produce absurd results. Contrary to the Government’s contention, a
lawyer is not required to represent her client during a state retrial
following postconviction relief because the retrial marks the commence
ment of new judicial proceedings, not a subsequent stage of existing
proceedings; state postconviction proceedings are also not “subsequent”
to federal habeas proceedings. Second, the legislative history does not
support the Government’s argument that Congress intended § 3599 to
apply only to federal defendants. Congress’ decision to furnish counsel
for state clemency proceedings reflects both clemency’s role as the “ ‘fail
safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390,
415, and the fact that federal habeas counsel are well positioned to rep
resent their clients in clemency proceedings. Pp. 188–194.
503 F. 3d 566, reversed.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., post, p. 194,
and Thomas, J., post, p. 196, filed opinions concurring in the judgment.
Scalia, J., filed an opinion concurring in part and dissenting in part, in
which Alito, J., joined, post, p. 200.
Dana C. Hansen Chavis argued the cause for petitioner.
With her on the briefs were Stephen M. Kissinger, Andrew
J. Pincus, Charles A. Rothfeld, and Dan M. Kahan.
William M. Jay argued the cause for the United States as
amicus curiae in support of the judgment below. With him
on the brief were former Solicitor General Garre, Acting
Assistant Attorney General Friedrich, Deputy Solicitor
General Dreeben, and Robert J. Erickson. Robert E.
Cooper, Jr., Attorney General of Tennessee, Michael E.
Moore, Solicitor General, and Gordon W. Smith, Associate
Solicitor General, filed a brief for respondent.*
*Donald B. Verrilli, Jr., and Virginia E. Sloan filed a brief for the
Constitution Project as amicus curiae urging reversal.
Daniel T. Kobil and Irving L. Gornstein filed a brief for Current and
Former Governors as amici curiae.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
182 HARBISON v. BELL
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
Petitioner Edward Jerome Harbison was sentenced to
death by a Tennessee court in 1983. In 1997, after the state
courts rejected challenges to his conviction and sentence, the
Federal District Court appointed the Federal Defender Ser
vices of Eastern Tennessee to represent him in filing a peti
tion for a writ of habeas corpus pursuant to 28 U. S. C.
§ 2254.1 During the course of that representation, counsel
developed substantial evidence relating both to Harbison’s
culpability and to the appropriateness of his sentence. Al
though the courts did not order relief, the evidence proved
persuasive to one Circuit Judge. See 408 F. 3d 823, 837–846
(CA6 2005) (Clay, J., dissenting).
Shortly after his habeas corpus petition was denied, Harbi
son requested counsel for state clemency proceedings. In
2006, the Tennessee Supreme Court held that state law does
not authorize the appointment of state public defenders as
clemency counsel. State v. Johnson, No. M1987–00072–
SC–DPE–DD (per curiam), 2006 Tenn. Lexis 1236, *3
(Oct. 6, 2006). Thereafter, Harbison’s federally appointed
counsel moved to expand the authorized scope of her repre
sentation to include state clemency proceedings. Relying
on Circuit precedent construing 18 U. S. C. § 3599, which pro
vides for the appointment of federal counsel, the District
Court denied the motion, and the Court of Appeals affirmed.
503 F. 3d 566 (CA6 2007).
We granted certiorari, 554 U. S. 917 (2008), to decide two
questions: (1) whether a certificate of appealability (COA) is
required to appeal an order denying a request for federally
appointed counsel pursuant to § 3599, and (2) whether
§ 3599(e)’s reference to “proceedings for executive or other
clemency as may be available to the defendant” encompasses
1 Federal Defender Services of Eastern Tennessee is a nonprofit organi
zation established pursuant to the Criminal Justice Act of 1964, 18
U. S. C. § 3006A(g)(2)(B).

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
Cite as: 556 U. S. 180 (2009) 183
Opinion of the Court
state clemency proceedings. We conclude that a COA is not
necessary and that § 3599 authorizes federally appointed
counsel to represent clients in state clemency proceedings.
I
We first consider whether Harbison was required to obtain
a COA to appeal the District Court’s order. The State of
Tennessee and the United States as amicus curiae agree
with Harbison that he was not.
The District Court’s denial of Harbison’s motion to author
ize his federal counsel to represent him in state clemency
proceedings was clearly an appealable order under 28
U. S. C. § 1291. See, e. g., McFarland v. Scott, 512 U. S. 849
(1994) (reviewing the Court of Appeals’ judgment denying a
petition for the appointment of counsel pursuant to the stat
ute now codified at 18 U. S. C. § 3599). The question is
whether Harbison’s failure to obtain a COA pursuant to 28
U. S. C. § 2253(c)(1)(A) deprived the Court of Appeals of ju
risdiction over the appeal.
Section 2253(c)(1)(A) provides that unless a circuit justice
or judge issues a COA, an appeal may not be taken from
“the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
State court.” This provision governs final orders that dis
pose of the merits of a habeas corpus proceeding—a proceed
ing challenging the lawfulness of the petitioner’s detention.
See generally Slack v. McDaniel, 529 U. S. 473, 484–485
(2000); Wilkinson v. Dotson, 544 U. S. 74, 78–83 (2005). An
order that merely denies a motion to enlarge the authority
of appointed counsel (or that denies a motion for appointment
of counsel) is not such an order and is therefore not subject
to the COA requirement.
II
The central question presented by this case is whether 18
U. S. C. § 3599 authorizes counsel appointed to represent a
state petitioner in 28 U. S. C. § 2254 proceedings to represent

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
184 HARBISON v. BELL
Opinion of the Court
him in subsequent state clemency proceedings. Although
Tennessee takes no position on this question, the Govern
ment defends the judgment of the Court of Appeals that the
statute does not authorize such representation.
We begin with the language of the statute. Section 3599,
titled “Counsel for financially unable defendants,” provides
for the appointment of counsel for two classes of indigents,
described, respectively, in subsections (a)(1) and (a)(2). The
former states:
“[I]n every criminal action in which a defendant is
charged with a crime which may be punishable by death,
a defendant who is or becomes financially unable to ob
tain adequate representation or investigative, expert, or
other reasonably necessary services at any time either—
“(A) before judgment; or
“(B) after the entry of a judgment imposing a sen
tence of death but before the executi on of that
judgment;
“shall be entitled to the appointment of one or more at
torneys and the furnishing of such other services in ac
cordance with subsections (b) through (f).”
Subsection (a)(2) states:
“In any post conviction proceeding under section 2254
or 2255 of title 28, United States Code, seeking to vacate
or set aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate represen
tation or investigative, expert, or other reasonably nec
essary services shall be entitled to the appointment of
one or more attorneys and the furnishing of such other
services in accordance with subsections (b) through (f).”
The parties agree that subsections (a)(1) and (a)(2) make two
different groups eligible for federally appointed counsel:
Subsection (a)(1) describes federal capital defendants, while
subsection (a)(2) describes state and federal postconviction

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
185 Cite as: 556 U. S. 180 (2009)
Opinion of the Court
litigants, as indicated by its reference to both § 2254 and
§ 2255 proceedings.2
After subsections (b) through (d) discuss counsel’s neces
sary qualifications, subsection (e) sets forth counsel’s respon
sibilities. It provides:
“Unless replaced by similarly qualified counsel upon the
attorney’s own motion or upon motion of the defendant,
each attorney so appointed shall represent the defend
ant throughout every subsequent stage of available judi
cial proceedings, including pretrial proceedings, trial,
sentencing, motions for new trial, appeals, applications
for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction process, to
gether with applications for stays of execution and other
appropriate motions and procedures, and shall also rep
resent the defendant in such competency proceedings
and proceedings for executive or other clemency as may
be available to the defendant.” (Emphasis added.)
Focusing on the italicized clause of subsection (e), Harbison
contends that the plain language of the statute dictates the
outcome of this case. We are persuaded by his argument.
Under a straightforward reading of the statute, subsection
(a)(2) triggers the appointment of counsel for habeas peti
tioners, and subsection (e) governs the scope of appointed
counsel’s duties. See § 3599(a)(2) (stating that habeas peti
tioners challenging a death sentence shall be entitled to “the
furnishing of . . . services in accordance with subsections
(b) through (f)”). Thus, once federally funded counsel is ap
pointed to represent a state prisoner in § 2254 proceedings,
she “shall also represent the defendant in such . . . pro
ceedings for executive or other clemency as may be availa
ble to the defendant.” § 3599(e). Because state clemency
proceedings are “available” to state petitioners who obtain
2 We note that § 3599 uses the term “defendant” to describe postconvic
tion litigants.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
186 HARBISON v. BELL
Opinion of the Court
representation pursuant to subsection (a)(2), the statutory
language indicates that appointed counsel’s authorized repre
sentation includes such proceedings.
The Government contends that, fairly read, the statute as
a whole is intended to furnish representation only in federal
proceedings and that all proceedings listed in subsection (e),
including clemency proceedings, should be understood to be
federal. The absence of the word “federal” in this subsec
tion is not dispositive, it maintains, because subsection (a)(1)
likewise does not use the word “federal” yet the parties
agree that provision concerns only federal defendants. Just
as “federal” is implied by context in subsection (a)(1), so too,
the Government says, is it implied in subsection (e). Ac
cording to the Government, the repeated use of the word
“available” supports this reading: Congress contemplated
that not all catalogued proceedings would be available to any
given client, and clemency proceedings are simply not avail
able to state petitioners because they are ineligible for
federal clemency.
The Government’s argument is not convincing. Subsec
tion (a)(1) is properly understood as describing federal de
fendants because the statute is primarily concerned with
federal criminal actions 3 and (a)(1) includes no language sug
gesting that it applies more broadly. By contrast, subsec
tion (a)(2) refers to state litigants, and it in turn provides
that subsection (e) applies to such litigants. There is there
fore no basis for assuming that Congress intended “proceed
ings for executive or other clemency as may be available to
the defendant” in subsection (e) to indicate only federal
clemency.
To the contrary, the reference to “proceedings for execu
tive or other clemency,” § 3599(e) (emphasis added), reveals
3 As we discuss below, § 3599 was originally enacted as part of a statute
creating a new federal capital offense, Anti-Drug Abuse Act of 1988,
§ 7001(b), 102 Stat. 4388, and it is now codified in Title 18, which principally
addresses federal criminal proceedings.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
187 Cite as: 556 U. S. 180 (2009)
Opinion of the Court
that Congress intended to include state clemency proceed
ings within the statute’s reach.4 Federal clemency is exclu
sively executive: Only the President has the power to grant
clemency for offenses under federal law. U. S. Const.,
Art. II, § 2, cl. 1.5 By contrast, the States administer clem
ency in a variety of ways. See, e. g., Ga. Const., Art. IV, § 2
(independent board has clemency authority); Nev. Const.,
Art. 5, § 14 (governor, supreme court justices, and attorney
general share clemency power); Fla. Const., Art. IV, § 8 (leg
islature has clemency authority for treasonous offenses); Mc-
Laughlin v. Bronson, 206 Conn. 267, 271, 537 A. 2d 1004,
1006–1007 (1988) (“In Connecticut, the pardoning power is
vested in the legislature, which has delegated its exercise to
the board of pardons” (citation omitted)). Congress’ refer
ence to “other clemency” thus does not refer to federal clem
ency but instead encompasses the various forms of state
clemency.6
4 Justice Scalia argues that subsection (e), including the reference to
“other clemency,” was drafted to apply only to federal defendants, but this
is not correct, as we discuss infra, at 190–193.
5 The Government suggests that Congress might have referred to “other
clemency” to encompass the Executive’s use of other persons to assist him
in reviewing clemency applications. But as the Government concedes,
see Tr. of Oral Arg. 43—and as Members of Congress would have known—
regardless of what assistance the President seeks, the federal proceeding
is one for executive clemency under the Constitution.
6 We also note that the Government’s proposal to read the word “federal”
into § 3599(e) would lead to absurd results. It is clear, for example, that
a state inmate faced with an imminent execution might be required to
apply for a stay from a state court before seeking such relief in a federal
court. On our reading of the statute, federally appointed counsel would
be permitted to represent her client pursuant to subsection (e)’s reference
to “applications for stays of execution and other appropriate motions and
procedures.” But on the Government’s reading, the inmate would have
to secure new counsel to file the stay request because his federal counsel
would not be authorized to represent him. Such a rigid limit on the au
thority of appointed federal counsel would be inconsistent with the basic
purpose of the statute. Cf. McFarland v. Scott, 512 U. S. 849, 854–857
(1994).

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
188 HARBISON v. BELL
Opinion of the Court
The Government’s reliance on the word “available” is also
misplaced. While it maintains that Congress’ repeated use
of the word shows that various § 3599(e) procedures do
not apply to particular indigents, the term instead indicates
the breadth of the representation contemplated. The di
rective that counsel “shall represent the defendant through
out every subsequent stage of available judicial proceed
ings, including . . . all available post-conviction process,”
for example, hardly suggests a limitation on the scope of
representation.
The Government is correct that appointed counsel is not
expected to provide each service enumerated in subsection
(e) for every client. But that limitation does not follow from
the word “available”; it follows from the word “subsequent”
and the organization of subsection (e) to mirror the ordinary
course of proceedings for capital defendants. Counsel’s re
sponsibilities commence at a different part of subsection
(e) depending on whether she is appointed pursuant to sub
section (a)(1)(A), (a)(1)(B), or (a)(2). When she is appointed
pursuant to (a)(1)(A), she is charged with representing her
client in all listed proceedings. When she is appointed pur
suant to (a)(1)(B) (i. e., after the entry of a federal death
sentence), her representation begins with “appeals.” And
when she is appointed pursuant to (a)(2), her representation
begins with the § 2254 or § 2255 “post-conviction process.”
Thus, counsel’s representation includes only those judicial
proceedings transpiring “subsequent” to her appointment.
It is the sequential organization of the statute and the term
“subsequent” that circumscribe counsel’s representation, not
a strict division between federal and state proceedings.
III
In an attempt to overcome the plain language of § 3599, the
Government advances two additional arguments that merit
discussion. First, it contends that a literal reading of sub
section (e) would lead to unacceptable results: It would re

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
189 Cite as: 556 U. S. 180 (2009)
Opinion of the Court
quire a federal lawyer who obtained relief for her client in
§ 2254 proceedings to continue to represent him during his
state retrial; similarly, it would require federal counsel to
represent her client in any state habeas proceeding following
her appointment. Second, the Government claims that the
statute’s legislative history shows that Congress did not in
tend to include state clemency proceedings within § 3599(e)’s
coverage. Neither argument is persuasive.
The Government suggests that reading § 3599(e) to author
ize federally funded counsel for state clemency proceedings
would require a lawyer who succeeded in setting aside a
state death sentence during postconviction proceedings to
represent her client during an ensuing state retrial. We do
not read subsection (e) to apply to state-court proceedings
that follow the issuance of a federal writ of habeas corpus.
When a retrial occurs after postconviction relief, it is not
properly understood as a “subsequent stage” of judicial pro
ceedings but rather as the commencement of new judicial
proceedings. Moreover, subsection (a)(2) provides for coun
sel only when a state petitioner is unable to obtain adequate
representation. States are constitutionally required to pro
vide trial counsel for indigent defendants. Thus, when a
state prisoner is granted a new trial following § 2254 pro
ceedings, his state-furnished representation renders him in
eligible for § 3599 counsel until the commencement of new
§ 2254 proceedings.
The Government likewise argues that our reading of
§ 3599(e) would require federally funded counsel to represent
her client in any state habeas proceeding occurring after her
appointment because such proceedings are also “available
post-conviction process.” But as we have previously noted,
subsection (e) authorizes counsel to represent her client in
“subsequent” stages of available judicial proceedings. State
habeas is not a stage “subsequent” to federal habeas. Just
the opposite: Petitioners must exhaust their claims in state
court before seeking federal habeas relief. See § 2254(b)(1).

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
190 HARBISON v. BELL
Opinion of the Court
That state postconviction litigation sometimes follows the
initiation of federal habeas because a petitioner has failed to
exhaust does not change the order of proceedings contem
plated by the statute.7
The Government also argues that § 3599(e) should not be
interpreted as including state clemency proceedings because
it was drafted to apply only to federal defendants. Section
3599 was originally enacted as part of the Anti-Drug Abuse
Act of 1988, § 7001(b), 102 Stat. 4388 (codified at 21 U. S. C.
§§ 848(q)(4)–(10)), which created a federal capital offense of
drug-related homicide. In 2006, the death penalty proce
dures specified in that Act were repealed and recodified
without change at 18 U. S. C. § 3599. Based on the 1988 leg
islative history, the Government argues that subsection
(e) was not written to apply to state petitioners at all. In
its telling, the subsection was drafted when the bill covered
only federal defendants; state litigants were added, by means
of what is now subsection (a)(2), just a few hours before the
bill passed in rushed end-of-session proceedings; and Con
gress simply did not attend to the fact that this amendment
applied what is now subsection (e) to state litigants.
While the legislative history is regrettably thin, the evi
dence that is available does not support the Government’s
argument. State petitioners were a part of the Anti-Drug
Abuse Act from the first day the House of Representatives
took up the bill. In the amendment authorizing the death
penalty for drug-related homicides, Representative George
Gekas included a provision that closely resembles the current
§ 3599(a)(2): “In any post-conviction proceeding under section
2254 or 2255 of title 28, United States Code, seeking to va
7 Pursuant to § 3599(e)’s provision that counsel may represent her client
in “other appropriate motions and procedures,” a district court may deter
mine on a case-by-case basis that it is appropriate for federal counsel to
exhaust a claim in the course of her federal habeas representation. This
is not the same as classifying state habeas proceedings as “available post
conviction process” within the meaning of the statute.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
191 Cite as: 556 U. S. 180 (2009)
Opinion of the Court
cate or set aside a death sentence, the court shall appoint
counsel to represent any defendant who is or becomes finan
cially unable to obtain adequate representation.” 134 Cong.
Rec. 22984 (1988) (emphasis added).
Following passage of the Gekas amendment, Representa
tive John Conyers proposed replacing its provisions on appel
late and collateral process (including the above-quoted provi
sion) with language comprising the provisions now codified
at §§ 3599(a)(1), (b), (c), and (e). Because his amendment in
troduced the § 3599(e) language and did not refer specifically
to § 2254 proceedings, the Government and Justice Scalia
argue that Representative Conyers drafted subsection (e) to
apply only to federal defendants. But his floor statements
evince his particular concern for state prisoners. He ex
plained that his amendment filled a gap because “[w]hile
State courts appoint lawyers for indigent defendants, there
is no legal representation automatically provided once the
case i[s] appealed to the Federal level.” Id., at 22996.8 He
then cited discussions by the Chief Judge of the Eleventh
Circuit and the NAACP devoted exclusively to errors found
by federal courts during habeas corpus review of state capi
tal cases. Ibid.
In the Senate, Representative Conyers’ language was first
replaced with Representative Gekas’ provision for counsel
for § 2254 and § 2255 petitioners, and then a subsequent
amendment substituted the text of the Conyers amendment.
See id., at 30401, 30746. Thereafter, the House amended the
bill a final time to insert the language now codified at
8 Despite his reference to “defendants” and “appealed,” Representative
Conyers was clearly discussing state prisoners seeking federal habeas re
lief. Representative Gekas’ amendment similarly referred to postconvic
tion litigants as “defendants,” and the relevant portion of his amendment
was titled “Appeal in Capital Cases” even though it incorporated § 2254
and § 2255 proceedings. 134 Cong. Rec. 22984. As codified, § 3599(a)(2)
likewise uses the term “defendant” to refer to habeas petitioners. The
Government is incorrect to suggest that the statute’s use of this term
illustrates that it was not written to apply to postconviction litigants.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
192 HARBISON v. BELL
Opinion of the Court
§ 3599(a)(2) while leaving the Conyers language in place.
See id., at 33215. The Government argues that this late
amendment marked the first occasion on which state prison
ers were brought within the bill’s compass. But Repre
sentative Gekas’ initial amendment explicitly referenced
§ 2254 petitioners, and Representative Conyers’ proposal
sought to provide additional protections for all capital de
fendants. The House’s final amendment is therefore best
understood not as altering the bill’s scope, but as clari
fying it.
The Government’s arguments about § 3599’s history and
purposes are laced with the suggestion that Congress simply
would not have intended to fund clemency counsel for indi
gent state prisoners because clemency proceedings are a
matter of grace entirely distinct from judicial proceedings.9
As this Court has recognized, however, “[c]lemency is deeply
rooted in our Anglo-American tradition of law, and is the
historic remedy for preventing miscarriages of justice where
judicial process has been exhausted.” Herrera v. Collins,
506 U. S. 390, 411–412 (1993) (footnote omitted). Far from
regarding clemency as a matter of mercy alone, we have
called it “the ‘fail safe’ in our criminal justice system.” Id.,
at 415.10
9 The Government also submits that providing federally funded counsel
for state clemency proceedings would raise “unique federalism concerns.”
Brief for United States as Amicus Curiae 31. But Tennessee’s position
belies that claim. Following other States that have litigated the question,
Tennessee has expressed “no view” on the statute’s scope because it “has
no real stake in whether an inmate receives federal funding for clemency
counsel.” Brief for Respondent 7; see also Brief for Current and Former
Governors as Amici Curiae 18 (“Contrary to the view of the Solicitor
General . . . , the fact that counsel is appointed by a federal court does not
reflect an intrusion on state sovereignty”).
10 See also Kansas v. Marsh, 548 U. S. 163, 193 (2006) (Scalia, J., concur
ring) (“Reversal of an erroneous conviction on appeal or on habeas, or the
pardoning of an innocent condemnee through executive clemency, demon
strates not the failure of the system but its success. Those devices are
part and parcel of the multiple assurances that are applied before a death

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
193 Cite as: 556 U. S. 180 (2009)
Opinion of the Court
Congress’ decision to furnish counsel for clemency pro
ceedings demonstrates that it, too, recognized the impor
tance of such process to death-sentenced prisoners, and its
reference to “other clemency,” § 3599(e), shows that it was
familiar with the availability of state as well as federal clem
ency proceedings. Moreover, Congress’ sequential enumer
ation suggests an awareness that clemency proceedings are
not as divorced from judicial proceedings as the Government
submits. Subsection (e) emphasizes continuity of counsel,
and Congress likely appreciated that federal habeas counsel
are well positioned to represent their clients in the state
clemency proceedings that typically follow the conclusion of
§ 2254 litigation.
Indeed, as the history of this case demonstrates, the work
of competent counsel during habeas corpus representation
may provide the basis for a persuasive clemency application.
Harbison’s federally appointed counsel developed extensive
information about his life history and cognitive impairments
that was not presented during his trial or appeals. She also
litigated a claim under Brady v. Maryland, 373 U. S. 83
(1963), based on police records that had been suppressed for
14 years. One Court of Appeals judge concluded that the
nondisclosure of these records “undermine[d] confidence in
Harbison’s guilty verdict” because the evidence contained
therein could have supported a colorable defense that a third
party murdered the victim and that Harbison’s codefendant
falsely implicated him. 408 F. 3d, at 840 (Clay, J., dissent
ing). Although the Court of Appeals concluded that Harbi
son’s Brady claim was procedurally defaulted, the informa
tion contained in the police records could be marshaled
together with information about Harbison’s background in a
sentence is carried out”); Dretke v. Haley, 541 U. S. 386, 399 (2004) (Ken
nedy, J., dissenting) (“Among its benign if too-often ignored objects, the
clemency power can correct injustices that the ordinary criminal process
seems unable or unwilling to consider”).

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
194 HARBISON v. BELL
Roberts, C. J., concurring in judgment
clemency application to the Tennessee Board of Probation
and Parole and the Governor.
Harbison’s case underscores why it is “entirely plausible
that Congress did not want condemned men and women to
be abandoned by their counsel at the last moment and left to
navigate the sometimes labyrinthine clemency process from
their jail cells.” Hain v. Mullin, 436 F. 3d 1168, 1175 (CA10
2006) (en banc). In authorizing federally funded counsel to
represent their state clients in clemency proceedings, Con
gress ensured that no prisoner would be put to death without
meaningful access to the “ ‘fail-safe’ ” of our justice system.
Herrera, 506 U. S., at 415.
IV
We conclude that a COA is not required to appeal an order
denying a motion for federally appointed counsel. We fur
ther hold that § 3599 authorizes federally appointed counsel
to represent their clients in state clemency proceedings and
entitles them to compensation for that representation. Ac
cordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
Chief Justice Roberts, concurring in the judgment.
I agree with much of the Court’s opinion. Title 18 U. S. C.
§ 3599(a)(2) entitles indigent federal habeas petitioners to ap
pointed counsel “in accordance with” subsection (e). Sub
section (e) specifies that the appointed counsel “shall repre
sent the defendant throughout every subsequent stage of
available judicial proceedings . . . and shall also represent
the defendant in such . . . proceedings for executive or other
clemency as may be available to the defendant.” Nothing in
the text of § 3599(e) excludes proceedings for available state
clemency, and, as the Court points out, there are good rea
sons to expect federal habeas counsel to carry on through
state clemency proceedings. See ante, at 192–193 and this
page.

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
195 Cite as: 556 U. S. 180 (2009)
Roberts, C. J., concurring in judgment
At the same time, the “plain language of § 3599,” ante, at
188, does not fully resolve this case. The obligation in sub
section (e) that the appointed counsel represent the defend
ant in “every subsequent stage of available judicial proceed
ings” is not on its face limited to “federal” proceedings, just
as there is no such limitation with respect to clemency. Yet
it is highly unlikely that Congress intended federal habeas
petitioners to keep their federal counsel during subsequent
state judicial proceedings. See Hain v. Mullin, 436 F. 3d
1168, 1178 (CA10 2006) (Briscoe, J., dissenting) (“[I]t cannot
seriously be suggested that Congress intended, in the event
a state capital prisoner obtains federal habeas relief and is
granted a new trial, to provide federally-funded counsel to
represent that prisoner in the ensuing state trial, appellate,
and post-conviction proceedings . . . ”). Harbison concedes
as much. Reply Brief for Petitioner 11–12; Tr. of Oral Arg.
5–6, 15.
If there were no way to read the words of the statute to
avoid this problematic result, I might be forced to accept
the Government’s invitation to insert the word “federal” into
§ 3599(e)—a limitation that would have to apply to clem
ency as well. But fortunately the best reading of the
statute avoids the problem: Section 3599(e)’s reference to
“subsequent stage[s] of available judicial proceedings” does
not include state judicial proceedings after federal habeas,
because those are more properly regarded as new judicial
proceedings.
The meaning of that phrase is not entirely plain, but it is
plain that not every lawsuit involving an inmate that arises
after the federal habeas proceeding is included. Surely
“subsequent stage[s]” do not include, for example, a chal
lenge to prison conditions or a suit for divorce in state court,
even if these available judicial proceedings occur subsequent
to federal habeas. That must be because these are new pro
ceedings rather than “subsequent stage[s]” of the proceed

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
196 HARBISON v. BELL
Thomas, J., concurring in judgment
ings for which federal counsel is available. Once it is ac
knowledged that Congress has drawn a line at some point,
this is the “best reading” of the statutory language. Post,
at 198 (Thomas, J., concurring in judgment).
Justice Thomas does not disagree. Instead, he contends
that it is not necessary to decide what the first part of the
sentence means in deciding what the second part means.
Post, at 199. We have said that “[w]e do not . . . construe
statutory phrases in isolation; we read statutes as a whole.”
United States v. Morton, 467 U. S. 822, 828 (1984). This cer
tainly applies to reading sentences as a whole.
I entirely agree with Justice Thomas that “Congress’ in
tent is found in the words it has chosen to use,” and that
“[o]ur task is to apply the text, not to improve upon it,” even
if that produces “very bad policy.” Post, at 198–199 (inter
nal quotation marks omitted). Here, we need only apply the
text of § 3599 to conclude that federal counsel is available for
state clemency, but not for subsequent state-court litigation.
I therefore concur in the result.
Justice Thomas, concurring in the judgment.
I agree that under 28 U. S. C. § 2253(c)(1)(A), a certificate
of appealability was not required to seek appellate review of
the issue in this case. See ante, at 183; see also post, at
200 (Scalia, J., concurring in part and dissenting in part).
I further agree with the Court that 18 U. S. C. §§ 3599(a)(2)
and (e) entitle eligible state postconviction litigants to feder
ally funded counsel in available state clemency proceedings.
See ante, at 183, 185–186. As even Justice Scalia ac
knowledges in his dissenting opinion, the statute “contains
no express language limiting its application to proceedings
in a federal forum.” Post, at 207; see also ante, at 194
(Roberts, C. J., concurring in judgment) (“Nothing in the
text of § 3599(e) excludes proceedings for available state
clemency . . . ”). By its express terms, the statute “enti
tle[s]” eligible litigants to appointed counsel who “shall rep

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
197 Cite as: 556 U. S. 180 (2009)
Thomas, J., concurring in judgment
resent the defendant . . . in such . . . proceedings for ex
ecutive or other clemency as may be available to the de
fendant.” §§ 3599(a)(2), (e). Because the statute applies
to individuals challenging either state or federal convic
tions, see § 3599(a)(2), and because state clemency is the only
clemency available to those challenging state convictions,
§§ 3599(a)(2) and (e) necessarily entitle eligible state post
conviction litigants to federally funded counsel in state clem
ency proceedings.
I disagree, however, with the assumption that § 3599 must
be limited to “federal” proceedings in at least some respects.
Ante, at 186; ante, at 195 (Roberts, C. J., concurring in judg
ment); post, at 202–203. The majority and dissent read such
a limitation into subsection (a)(1) of the statute. But that
subsection, like subsection (a)(2), “contains no language lim
iting its application to federal capital defendants. It pro
vides counsel to indigent defendants in ‘every criminal action
in which a defendant is charged with a crime which may be
punishable by death.’ ” Post, at 202 (quoting § 3599(a)(1)).
The majority, then, compounds its error by attempting to
discern some distinction between subsections (a)(1) and
(a)(2), to which it properly declines to add an extratextual
“federal” limitation, see ante, at 185–186. The dissent seizes
on this inconsistency between the majority’s interpretation
of subsections (a)(1) and (a)(2), but responds by incorrectly
reading a parallel “federal” limitation into subsection (a)(2),
see post, at 202–203. In the dissent’s view, “it is perfectly
reasonable to assume” that subsection (a)(2) is limited to fed
eral postconviction proceedings—including clemency pro
ceedings—“even where the statute contains no such express
limitation.” Post, at 202.
The Chief Justice, in contrast, finds a “federal” limita
tion in a clause of subsection (e) that is not before this Court
in order to cabin the reach of today’s decision. He observes
that the text of subsection (e) includes no “federal” limitation
with respect to any of the proceedings listed in that subsec

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
198 HARBISON v. BELL
Thomas, J., concurring in judgment
tion. But The Chief Justice finds a way to avoid this
“problematic result” by adding a different limitation to
§ 3599. In his view, the “best” reading of the phrase “subse
quent stage[s] of available judicial proceedings” is one that
excludes “state judicial proceedings after federal habeas”
proceedings because they are “new”—not “subsequent”—ju
dicial proceedings. Ante, at 195. Without this limitation,
The Chief Justice explains, “[he] might be forced to accept
the Government’s invitation to insert the word ‘federal’ into
§ 3599(e)—a limitation that would have to apply to clemency
as well”—because he finds it “highly unlikely that Congress
intended” for there to be no federal limitation at all in sub
section (e). Ante, at 195.
This Court is not tasked with interpreting § 3599 in a way
that it believes is consistent with the policy outcome in
tended by Congress. Nor should this Court’s approach to
statutory construction be influenced by the supposition that
“it is highly unlikely that Congress intended” a given result.
See ante, at 195 (Roberts, C. J., concurring in judgment).
Congress’ intent is found in the words it has chosen to use.
See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S.
83, 98 (1991) (“The best evidence of [Congress’] purpose is
the statutory text adopted by both Houses of Congress and
submitted to the President”). This Court’s interpretive
function requires it to identify and give effect to the best
reading of the words in the provision at issue. Even if the
proper interpretation of a statute upholds a “very bad pol
icy,” it “is not within our province to second-guess” the “wis
dom of Congress’ action” by picking and choosing our pre
ferred interpretation from among a range of potentially
plausible, but likely inaccurate, interpretations of a statute.
Eldred v. Ashcroft, 537 U. S. 186, 222 (2003); see also TVA v.
Hill, 437 U. S. 153, 194 (1978) (“Our individual appraisal of
the wisdom or unwisdom of a particular course consciously
selected by the Congress is to be put aside in the process of
interpreting a statute”). “Our task is to apply the text, not

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
199 Cite as: 556 U. S. 180 (2009)
Thomas, J., concurring in judgment
to improve upon it.” Pavelic & LeFlore v. Marvel Enter
tainment Group, Div. of Cadence Industries Corp., 493 U. S.
120, 126 (1989).
This statute’s silence with respect to a “federal” limitation
in no way authorizes us to assume that such a limitation
must be read into subsections (a) and (e) in order to blunt
the slippery-slope policy arguments of those opposed to a
plain-meaning construction of the provisions under review,
see ante, at 188–190. And Congress’ silence certainly does
not empower us to go even further and incorporate such an
assumption into the text of these provisions. Post, at 205–
207. Moreover, the Court should not decide a question irrel
evant to this case in order to pre-empt the “problematic”
results that might arise from a plain-text reading of the stat
utory provision under review. See ante, at 195 (Roberts,
C. J., concurring in judgment). Whether or not The Chief
Justice’s construction of the “subsequent stage of available
judicial proceedings” clause of subsection (e) is correct, it is
irrelevant to the proper interpretation of the clemency clause
of subsection (e). Even if the statute were to authorize fed
eral postconviction counsel to appear in state proceedings
other than state clemency proceedings, a question not re
solved by today’s decision, that conclusion would not provide
a legitimate basis for adopting the dissent’s atextual inter
pretation of the clemency clause of subsection (e). The
“best” interpretation of the clemency clause does not turn on
the unresolved breadth of the “subsequent stage of available
judicial proceedings” clause.
Rather, the Court must adopt the interpretation of the
statute that is most faithful to its text. Here, the absence
of a “federal” limitation in the text of subsections (a) and
(e) of § 3599 most logically suggests that these provisions are
not limited to federal clemency proceedings. “If Congress
enacted into law something different from what it intended,
then it should amend the statute to conform it to its intent.
It is beyond our province to rescue Congress from its draft

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
200 HARBISON v. BELL
Opinion of Scalia, J.
ing errors, and to provide for what we might think is the
preferred result.” Lamie v. United States Trustee, 540
U. S. 526, 542 (2004) (internal quotation marks and ellipsis
omitted). Accordingly, I concur in the judgment.
Justice Scalia, with whom Justice Alito joins, concur
ring in part and dissenting in part.
I agree with the Court that Harbison was not required
to obtain a certificate of appealability under 28 U. S. C.
§ 2253(c)(1)(A) before appealing the District Court’s denial of
his motion to expand counsel’s appointment. See ante, at
183. I do not agree, however, that 18 U. S. C. § 3599 gives
state prisoners federally funded counsel to pursue state
clemency. While purporting to adopt a “straightforward
reading of the statute,” ante, at 185, the Court in fact selec
tively amends the statute—inserting words in some places,
twisting their meaning elsewhere. Because the statute is
most naturally and coherently read to provide federally
funded counsel to capital defendants appearing in a federal
forum, I would affirm the decision of the Sixth Circuit and
hold that Harbison was not entitled to federally funded coun
sel to pursue state clemency.
I
Title 18 U. S. C. § 3599(a)(2) provides for the appointment
of counsel as follows:
“In any post conviction proceeding under section 2254
or 2255 of title 28, United States Code, seeking to vacate
or set aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate represen
tation or investigative, expert, or other reasonably nec
essary services shall be entitled to the appointment of
one or more attorneys and the furnishing of such other
services in accordance with subsections (b) through (f).”

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
201 Cite as: 556 U. S. 180 (2009)
Opinion of Scalia, J.
Section 3599(e) defines the scope of appointed counsel’s
representation:
“Unless replaced by similarly qualified counsel upon the
attorney’s own motion or upon motion of the defendant,
each attorney so appointed shall represent the defend
ant throughout every subsequent stage of available judi
cial proceedings, including pretrial proceedings, trial,
sentencing, motions for new trial, appeals, applications
for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction process, to
gether with applications for stays of execution and other
appropriate motions and procedures, and shall also rep
resent the defendant in such competency proceedings
and proceedings for executive or other clemency as may
be available to the defendant.”
As the Court notes, the first of these provisions entitled
Harbison to counsel for § 2254 proceedings. And the second
of them, without any express qualification, provides for coun
sel’s continued representation through “such . . . proceedings
for executive or other clemency as may be available to the
defendant,” which in petitioner’s case would include state
clemency proceedings. The Court thus concludes that the
statute’s “plain language” provides Harbison federally
funded counsel to represent him in state clemency proceed
ings. Ante, at 185.
But the Court quickly abandons its allegedly “plain” read
ing of the statute when it confronts the subsection that
precedes these two, which provides:
“Notwithstanding any other provision of law to the con
trary, in every criminal action in which a defendant is
charged with a crime which may be punishable by death,
a defendant who is or becomes financially unable to ob
tain adequate representation or investigative, expert, or
other reasonably necessary services at any time either—

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
202 HARBISON v. BELL
Opinion of Scalia, J.
“(A) before judgment; or
“(B) after the entry of a judgment imposing a sen
tence of death but before the execution of that
judgment;
“shall be entitled to the appointment of one or more at
torneys and the furnishing of such other services in ac
cordance with subsections (b) through (f).” § 3599(a)(1).
The Court states that “(a)(1) describes federal capital de
fendants.” Ante, at 184. But according to the Court’s
mode of analysis, that is not so. Subsection (a)(1), like sub
section (e), contains no language limiting its application to
federal capital defendants. It provides counsel to indigent
defendants in “every criminal action in which a defendant
is charged with a crime which may be punishable by death.”
§ 3599(a)(1) (emphasis added). Why, then, is subsection
(a)(1) limited to federal capital defendants? Because, as the
Court notes, “the statute is primarily concerned with federal
criminal actions and (a)(1) includes no language suggest
ing that it applies more broadly.” Ante, at 186 (footnote
omitted).
Quite right. Section 3599 was enacted as part of a bill
that created a new federal capital offense, see ibid., n. 3, and
it is perfectly reasonable to assume that a federal statute,
providing federally funded counsel, applies in federal pro
ceedings only, even where the statute contains no such ex
press limitation. Cf. Barron ex rel. Tiernan v. Mayor of
Baltimore, 7 Pet. 243, 247–248 (1833). But there is no basis
for adopting that reading with respect to only half the stat
ute. If subsection (a)(1) is limited to federal proceedings,
then subsection (e), which likewise contains no express fed
eral limitation, is similarly limited. We cannot give the
same silence (omission of the limiting word “federal”) in adja
cent and simultaneously enacted subsections of the same law
(§ 3599) divergent meanings.
The Court advances two arguments for reading subsection
(e) more broadly. First, it claims that unlike subsection

556US1 Unit: $U39 [04-29-14 14:51:33] PAGES PGT: OPIN
203 Cite as: 556 U. S. 180 (2009)
Opinion of Scalia, J.
(a)(1), “subsection (a)(2) refers to state litigants.” Ante,
at 186. It most certainly does not. It refers to proceedings
under §§ 2254 and 2255—proceedings under federal statutes
providing federal causes of action in federal court. Read
together, subsections (a)(1) and (a)(2) provide federally
funded counsel for persons convicted of capital crimes who
are appearing in federal court. Subsection (a)(2) neither un
dermines the Court’s earlier statement that “the statute’s
primary focus is federal” proceedings, nor gives the Court
license to insert words selectively into the statutory text.
The Court next reasons that the phrase “executive or
other clemency” suggests that subsection (e) includes state
clemency proceedings. Since (the argument goes) federal
clemency is exclusively executive, the word “other” must
refer to state clemency, or else it would be superfluous. But
the drafting history, which the Court thinks relevant, ante,
at 190–192, defeats the inference the Court wishes to draw.
The current text of subsection (e) first appeared in a version
of the bill that included what is now subsection (a)(1) (which
the Court concedes deals only with federal proceedings), but
not subsection (a)(2) (which the Court would deem applicable
to state proceedings). 134 Cong. Rec. 22995 (1988). In
other words, at the time of its introduction, subsection
(e) applied only to federal defendants, and the phrase “or
other clemency” was unquestionably superfluous.
In any event, the Court’s reading places a great deal of
weight on avoiding superfluity in a statute that is already
teeming with superfluity. Item: Subsection (a)(2) needlessly
refers to § 2255 proceedings even though subsections (a)(1)
and (e) taken together would provide federal capital defend
ants with counsel in § 2255 proceedings. Item: Subsection
(a)(2) provides counsel “in accordance with subsections (b)
through (f)” even though subsections (b) and (c) have no
conceivable relevance to subsection (a)(2).* Item: Subsec
*Subsection (b) details the requisite qualifications for a lawyer ap
pointed “before judgment”; but appointments under subsection (a)(2) are
made only after judgment. Subsection (c) requires that a lawyer ap

556US1 Unit: $U39 [04-29-14 14:51:34] PAGES PGT: OPIN
204 HARBISON v. BELL
Opinion of Scalia, J.
tion (e) provides counsel “throughout every subsequent stage
of available judicial proceedings,” including “all available
post-conviction process.” (Emphasis added.) The first use
of the term “available” is already of dubious value (is counsel
expected to represent a defendant in unavailable proceed
ings?), but its needless repetition is inexplicable. In a stat
ute that is such a paragon of shoddy draftsmanship, relying
upon the superfluity of “or other” to extend the statute’s
application from federal to state proceedings is quite ab
surd—and doubly absurd when that extension is illogically
limited to the subsection in which “or other” appears.
II
The Court’s reading of subsection (e) faces a second
substantial difficulty. Subsection (e) provides that counsel,
once appointed,
“shall represent the defendant throughout every subse
quent stage of available judicial proceedings, including
pretrial proceedings, trial, sentencing, motions for new
trial, appeals, applications for writ of certiorari to the
Supreme Court of the United States, and all available
post-conviction process, together with applications for
stays of execution and other appropriate motions and
procedures.” § 3599(e).
In other words, once counsel is appointed under (a)(2), peti
tioner is entitled to federal counsel “throughout every subse
quent stage of available judicial proceedings.” The Govern
ment argues that, if subsection (e) is not limited to federal
proceedings, then a § 2254 petitioner who obtains federally
funded counsel will retain that counsel, at federal expense,
in all “subsequent” state-court proceedings, including the re
trial that follows the grant of federal habeas relief. The
pointed after judgment have been “admitted to practice in the court of
appeals for not less than five years” (emphasis added); but the postconvic
tion proceedings dealt with by subsection (a)(2) take place in federal dis
trict court.

556US1 Unit: $U39 [04-29-14 14:51:34] PAGES PGT: OPIN
205 Cite as: 556 U. S. 180 (2009)
Opinion of Scalia, J.
Court disagrees, on the ground that a new trial represents
the “commencement of new judicial proceedings.” Ante,
at 189.
I need not enter that controversy. What is clear, at least,
is that (if subsection (e) includes state proceedings) federally
funded counsel would have to represent petitioners in subse
quent state habeas proceedings. The Court tries to split the
baby here, conceding that “a district court may determine
on a case-by-case basis that it is appropriate for federal coun
sel to exhaust [in state court] a claim in the course of her
federal habeas representation.” Ante, at 190, n. 7. The
Court tries to derive this discretionary authority from sub
section (e)’s provision for representation by federal counsel
in “other appropriate motions and procedures.” § 3599(e)
(emphasis added). But that provision is in addi tion
to, rather than in limitation of, subsection (e)’s unquali
fied statement that counsel “shall represent the defendant
throughout every subsequent stage of available judicial pro
ceedings, including . . . all available post-conviction process.”
The provision then continues: “together with applications for
stays of execution and other appropriate motions and proce
dures.” (Emphasis added.) There is no way in which this
can be read to limit the requirement that counsel represent
the defendant in “every subsequent stage of available judicial
proceedings,” which would include habeas proceedings in
state court.
The Court seeks to avoid this conclusion by saying that
“[s]tate habeas is not a stage ‘subsequent’ to federal habeas,”
because “[p]etitioners must exhaust their claims in state
court before seeking federal habeas relief.” Ante, at 189.
This is a breathtaking denial of reality, confusing what
should be with what is. It is rather like saying that murder
does not exist because the law forbids it. To be sure, peti
tioners are supposed to complete state postconviction pro
ceedings before pursuing relief in federal court. But they
often do not do so, and when they do not our opinions permit
them to seek stays or dismissals of their § 2254 petitions in

556US1 Unit: $U39 [04-29-14 14:51:34] PAGES PGT: OPIN
206 HARBISON v. BELL
Opinion of Scalia, J.
order that they may thereafter (subsequently) return to
state court to exhaust their claims. See Rhines v. Weber,
544 U. S. 269, 277–278 (2005); Pliler v. Ford, 542 U. S. 225,
228 (2004). Additionally, inmates may—as petitioner did in
this case—file successive state habeas petitions after § 2254
proceedings are complete. See Harbison v. State,
No. E2004–00885–CCA–R28–PD, 2005 WL 1521910, *1
(Tenn. Crim. App., June 27, 2005). These subsequent state
proceedings are not rare but commonplace, and it is incon
ceivable (if state proceedings are covered) that subsection
(e) does not refer to them. Indeed, one would think that
subsection (e) refers especially to them. And what kind of
an incoherent statute would it be that allows counsel for de
facto-subsequent federal habeas claims that should have
been brought earlier (see § 3599(a)(2)) but does not allow
counsel for subsequent state habeas claims that have the
same defect?
If § 3599(e) includes state proceedings (as the Court holds),
and if “subsequent” is given its proper scope (rather than
the tortured one adopted by the Court)—then § 3599(a)(2)’s
limitation of federally provided counsel to only federal ha
beas proceedings would amount to a dead letter. A capital
convict could file for federal habeas without first exhausting
state postconviction remedies, obtain a stay or dismissal of
that federal petition, and return to state court along with
his federally funded lawyer. Indeed, under our decision in
McFarland v. Scott, 512 U. S. 849 (1994), he need not even
file an unexhausted federal habeas petition; he can file a
stand-alone “motion requesting the appointment of habeas
counsel,” id., at 859, and obtain federally funded counsel that
he can then take back for the subsequent state proceedings.
The question persists: Why would § 3599(a)(2) provide coun
sel in only federal habeas proceedings, when § 3599(e) makes
it so easy to obtain federally funded counsel for state habeas
proceedings as well?

556US1 Unit: $U39 [04-29-14 14:51:34] PAGES PGT: OPIN
207 Cite as: 556 U. S. 180 (2009)
Opinion of Scalia, J.
* * *
Concededly, § 3599 contains no express language limiting
its application to proceedings in a federal forum. And yet
Harbison, the Government, and the Court all read part
of that section to refer to federal proceedings only. The
Court’s refusal to extend that limitation to the entirety of
§ 3599 is untenable. It lacks a textual basis and has the ad
ditional misfortune of producing absurd results, which the
majority attempts to avoid by doing further violence to the
statutory text. I would read the statute as providing fed
eral counsel to capital convicts appearing in a federal forum,
and I accordingly would affirm the judgment of the Sixth
Circuit.